Irish British Subjects

Introduction

While perhaps well known to that small band of nationality lawyers around the world who take pleasure in obscure, forgotten and anachronistic classes of citizenship and nationality, it is not more widely appreciated that there remains a limited class of Irish citizens who are, by virtue of holding Irish citizenship, also considered to be British subjects.

‘British subject’ status is one of the six classes of British nationality or status provided by and under the British Nationality Act 1981. It is a different class to that of British citizenship and the two ought not be confused.

Irish British Subjects are literally part of a dying class of British nationals as the principal event regulating their perpetuation occurred on 1 January 1949, for those Irish citizens who were alive that day, when the British Nationality Act 1948 came into force. British subject status as acquired and retained by Irish citizens demonstrates certain features of nationality law that embody the degrees both of intimacy and of estrangement that exist in relations between the UK and Ireland.

Some History

As a result of Ireland’s struggle for independence, an Agreement was made between Britain and Ireland on 6 December 1921, which provided for the establishment of the Irish Free State as an entity with the same constitutional status within the British Empire as the dominions of Canada, Australia, New Zealand and South Africa (that is to say with the widest powers of self-government then available).

Prior to 31 March 1922, the date the Irish Free State (Agreement) Act 1922 came into force in the UK, the territory now comprised in the Republic of Ireland was part of the United Kingdom and, thereby, part of the (wider) dominions of the King. As territory that fell within the King’s dominions the applicable nationality law for the people belonging to that territory was the British Nationality and Status of Aliens Act 1914, which prescribed the class of persons deemed to be British subjects by virtue of birth, descent, etc. The commencement of the 1922 Act did not change the position of persons belonging to the newly created Irish Free State. Their nationality continued to be regulated by the 1914 Act.

On 6 December 1922 the Irish Free State Constitution came into force, article 3 of which provided for citizenship of the Irish Free State for those persons alive on that day, domiciled in the Irish Free State and possessing a relevant qualification (such as birth anywhere in the island of Ireland or descent from a parent so born). The United Kingdom government considered that such citizenship was relevant only within the limits of the jurisdiction of the Irish Free State (as the Constitution stated) and that, in any event, Irish citizens who were British subjects remained so and that the 1914 British Nationality and Status of Aliens Act remained applicable to the territory of the Irish Free State (as it still fell within the King’s dominions notwithstanding separation from the UK itself) and to persons belonging to that territory.

Further, the UK position was that, outside the territory of the Irish Free State, the position of persons belonging to it was that they were (solely) British subjects, that is that they possessed British nationality, of which Irish Free State citizenship was but a local, territorial expression. In other words, for the purposes of international law, the UK did not consider that Irish Free State citizenship was a true nationality.

Needless to say the UK stance was inimical to political sentiment in the Irish Free State and to those who wished to see Ireland firmly established as a sovereign state in international law and in the society of states. Steps were taken to rectify matters. In the Irish Free State new legislation was enacted. The 1935 Nationality and Citizenship Act repealed the British Nationality and Status of Aliens Act 1914 insofar as it was law within the Irish Free State, made further provision for citizenship of the Irish Free State (from 29 December 1937 Eire or Ireland), and made explicit its character as a nationality beyond the territorial jurisdiction of the state, that is to say that its character for both municipal and international purposes.

Notwithstanding the independent turn in Ireland’s constitutional arrangements, clearly evidenced by the 1935 Nationality and Citizenship Act, the 1936 Executive Authority (External Relations) Act and the subsequent 1937 Constitution, the UK government continued to consider that the remaining vestiges of the relationship with the Crown, meant that Eire remained within the Crown’s dominions and that the 1914 British Nationality and Status of Aliens Act, providing for British Subjects, continued to apply to the people of Eire, see for example the case of Murray v Parkes [1942] 2 K.B. 123.

The termination of constitutional links with the Crown occurred when the Republic of Ireland Act 1948 was passed in Eire. On 18 April 1949 Ireland status as a Republic was affirmed in Irish law (NB the 1937 Constitution was republican in character, albeit that a slender link to the Crown had been maintained for external purposes). From that point the UK could no longer maintain the stance that the British Nationality and Status of Aliens Act 1914 or any other UK statute made British subjects out of those belonging to the Irish state. Developments in UK law recognised this state of affairs.

The 1948 British Nationality Act and Irish British subjects

At the same as Ireland was moving to describing itself as a Republic, the UK reconstituted its nationality law. British subject status ceased to be a substantive class of nationality for all those belonging to the King’s dominions (by birth, descent, etc.) and became an over-arching class that contained ‘Citizens of the United Kingdom and Colonies’ (CUKCs) as well as those who were citizens of independent Commonwealth states (and those British subjects without citizenship who were expected to become citizens of such states when they enacted their own nationality laws).

The British Nationality Act 1948 was passed in the knowledge that Ireland was to cease to fall within the King’s dominions and become alienated (i.e. it was not even to be associated with the UK by remaining within the Commonwealth). The 1948 Act, which came into force on 1 January 1949, did two things with respect to Ireland. First, it made no provision in section 1 for Irish citizens to be treated, henceforth, as British subjects (in the over-arching sense that the term was now to be used to embrace CUKCs and those associated with other Commonwealth states). Second, in section 2 it made provision for pre-1948 Act Irish British subjects, at any point, to register their desire to remain British subjects, upon which occurrence they would be deemed never to have lost such status.

These two steps tell us that up until that point, notwithstanding the legislative and constitutional innovations introduced by Ireland in the 1930s, the UK had continued to treat Ireland as within the King’s dominions so that Irish British subjects owed allegiance to the Crown. For British nationality law purposes, Ireland is alienated by the 1948 British Nationality Act and not before. This can be seen not only in the omission of Ireland from the list of independent Commonwealth countries whose citizens remain British subjects (now also known as Commonwealth citizens) in the over-arching sense described above, but also in the provision of the option of notifying a desire to retain British subject status for those who were Irish British subjects immediately prior to 1949.

The use of this option to retain a form of British nationality was a technique used by the UK for those who were and who remained Irish citizens. It did not seek to replace Irish citizenship but was parasitic upon it, insofar as it was a requirement for a person to be an Irish citizen in order to retain British subject status in this way.

The inhabitants belonging to the territory of independent Ireland possessed the nationality of Ireland under its municipal law. UK law provided for those Irish British subjects born prior to 1949 to retain the nationality of the state to which they had hitherto (in UK eyes) belonged. Provision was made for those Irish citizens who had a connection with the UK by virtue of (UK) Crown service, holding a British passport, or other association (residence, descent or otherwise) to retain British subject status by notifying their desire to do so. It was a straightforward way to retain British nationality.

Ireland was the only British possession to secede from the metropolitan territory (i.e. from the UK itself), as opposed to being a non-metropolitan British possession (not being part of the UK) such as a colony which obtained independence. To some extent the arrangements made for severing the inhabitants of the Republic of Ireland from British nationality reflect this in providing for an easy route to retention of British subject status. Such provision reflects the close physical proximity between the two states, the intermingling of populations and the complicated question of how to provide for Irish citizens who nonetheless wished to continue to belong to the UK for practical reasons.

The intimacy between the two states is reflected further in the (UK) Ireland Act 1949, whereby Ireland – while no longer a British possession, nor a Commonwealth member state – is nonetheless not to be treated as ‘foreign’ for the purposes of the law in force in the UK or other British possessions.

The 1981 British Nationality Act and Irish British subjects

The ability for a pre-1949 Irish British subject to register his or her desire to retain British subject status (and thus to be deemed never to have lost such status) has survived the replacement of the British Nationality Act 1948 by the British Nationality Act 1981. Under section 31 of the latter a person who is a citizen of the Republic of Ireland (that is a citizen of one country), and who was a British subject and a citizen of Eire immediately prior to 1949, may register his or her wish to retain British subject status on grounds of (UK) Crown Service or other association (descent, residence or otherwise) and, thereafter, a enjoy a form of British nationality today. To hold this form of British nationality it is necessary to hold Irish citizenship. Loss of the latter would lead to loss of British subject status. Thus possession of this form of British nationality is dependent on the acquisition and loss of the nationality of another country. These are unusual modes of acquisition and loss to find in a nationality law.

Alien Wives of Irish British subjects

One perhaps unintended consequence of the passage of British nationality legislation since the Second World War is the position of alien (i.e. foreign) women who married Irish British subjects prior to the commencement of the British Nationality Act 1981 on 1 January 1983. Under section 1 of the British Nationality Act 1965 provision was made for alien women who married British subjects to apply to register by entitlement as British subjects. This innovation was to enable married women to acquire the nationality of their husbands and was intended to give effect to the 1957 United National Convention on the Nationality of Married Women. These women would (in the overwhelming majority of cases) have had a foreign nationality and not have been stateless.

The 1965 Act operated to enable alien women to secure by registration a form of British nationality. However, as British subject status was not seen as a substantive category of British nationality destined to be perpetuated, certain provision was made in section 2 for a woman to lose that form of British nationality if she acquired Citizenship of the United Kingdom and Colonies, citizenship of an independent Commonwealth state, or citizenship of the Republic of Ireland. In other words if she acquired British subject status (in the overarching – rather than substantive – sense used to group together CUKCs and citizens of Commonwealth countries) on a better basis, or if she acquired Irish citizenship. Acquisition of a foreign nationality (remember Ireland was not to be treated as ‘foreign’) had no similar effect. This provision for loss was connected to acquisition of a better form of British nationality. Under the 1965 Act women who were able to register as British subjects by virtue of marriage to Irish British subjects were exempted from this loss provision. Instead it bore down on those women who registered as British subjects following marriage to male British subjects without citizenship (generally men who were British subjects by virtue of connection to territories that became India or Pakistan but who did not acquire the citizenship of such a country on or after its independence from the UK and who did not become CUKCs).

The British Nationality Act 1981 did not re-enact the 1965 Act’s general provision for women married to British subjects to register as British subjects and made only time-limited transitional provision in section 33 for women so married immediately prior to 1983 to register as British subjects.

Further, the 1981 Act by section 35 provided for automatic loss of British subject status to a woman who had registered as British subject under the British Nationality Act 1965 but who went on to acquire any other citizenship or nationality whatsoever (not just British citizenship or citizenship of another Commonwealth country but also any foreign citizenship). This makes little or no sense. Such a woman had not been not able to register as a British subject because she was marrying a man who was stateless (indeed quite the reverse, he had to have Irish citizenship in order to be an (Irish) British subject). Nor had she herself been able to register as a British subject in order to cure herself of being stateless. The point of registration was that thereby she had been able to acquire the same nationality as her husband (i.e. a form of British nationality).Thereafter, to take British subject status away from her if she acquires an additional nationality, as the 1981 Act does, makes no sense. Not least as no such loss provision would apply to her (Irish) British subject husband were he to acquire another nationality. The British subject wife of an Irish British subject would (generally speaking) have held a foreign nationality when she registered as a British subject. What difference does it make if she acquires an additional foreign nationality or or after commencement of the 1981 Act?

The answer to why the provision so made in the British Nationality Act 1981 works in this way is that it conflates the position of wives of Irish British subjects with that of women who were married to British subjects without citizenship (generally men who were British subjects by virtue of connection to territories that became India or Pakistan but who did not acquire the citizenship of such a country on or after its independence from the UK and who did not become CUKCs). Under section 13 of the British Nationality Act 1948, British subjects without citizenship would lose their British subject (without citizenship) status if and when they acquired any other citizenship or nationality.

Thereafter as already noted, the 1965 British Nationality Act provided for women who registered as British subjects by virtue to marriage to British subjects without citizenship, to lose that status on acquiring Citizenship of the United Kingdom and Colonies, citizenship of an independent Commonwealth state, or citizenship of the Republic of Ireland. The 1981 Act carried over that technique but widened it to being a loss provision occurring on the acquisition of any other citizenship or nationality whatever and extending it to embrace women who had registered as British subjects following marriage to Irish British subjects. The extension of it to such women appears to be either unintended or a policy shift without any obvious purpose.

The right of abode in the UK

Irish British subjects may also have the right of abode in the UK by separate provision in section 2 of the Immigration Act 1971. That is to say they may have the right to live and work in the UK free of immigration restriction just as British citizens do. Indeed it is likely that Irish British subjects will have such a right, as the right of abode may be acquired, for example, by birth or adoption in the UK, or birth or lawful adoption to a parent so born. For this purpose the UK includes prior to 31 March 1922 (the date the Irish Free State (Agreement) Act 1922 came into force in the UK) all of Ireland, that is to say it includes the territory now belonging to the Republic of Ireland. So for an Irish British subject born prior to 1949, he or she would have the UK right of abode if he or she, or a parent was UK-born (with the UK so defined).

The benefits being an Irish British subject

Irish British subjects may apply for and receive UK passports describing them as British subjects (if they also hold the right of abode in the UK the passport will be endorsed to that effect). Such passports entitle them to travel as British nationals and to request consular and diplomatic assistance from British posts in third countries. However third countries (i.e. countries other than the UK or Ireland) may impose visa requirements on Irish British subjects in circumstances where British citizens are permitted to travel to and enter such countries without a visa.

Further, all Irish British subjects will be Irish citizens and therefore they will also benefit from Common Travel Area (CTA) arrangements between the UK and Ireland, so in practical terms (subject to minor provisos) they may move freely between the UK and Ireland as Irish citizens without using a UK passport describing them as British subjects with the right of abode in the UK. In addition under EU law free movement rights for Irish citizens as EU citizens also confer a right of admission to the UK (subject to certain limitations).

Although neither CTA arrangements nor EU rights of free movement confer rights in the UK as good as being a British subject with the right of abode, in practical terms the differences are negligible and thus any practical advantage in using a UK passport to enter the UK as a British subject with the right of abode is hard to discern.

As regards the European Union, the UK has declared for the purposes of the EU legal order who among its citizens are to be regarded as UK nationals and therefore as nationals of an EU Member State and EU citizens. Three classes of persons are included: British citizens, British overseas territories citizens who hold such status by virtue of a Gibraltar connection, and British subjects with the right of abode. Thus Irish British subjects who hold the right of abode in the UK, are UK nationals as regards the EU and free movement around the EU.

That such persons are considered to belong to the UK for EU purposes is unsurprising as they are plainly British nationals and they have the right of abode in the UK. For all intents and purposes they indistinguishable from British citizens as regards the benefits that flow from possession of British nationality. That equivalence may also be seen in s 3(9) of the Immigration Act 1971 which provides for UK passports describing a person as a British citizen or as a person as a British subject with the right of abode, to be able to prove a right of entry to the UK on production of such a passport.

Loose ends

The British Nationality Act 1981 in Schedule 2 makes provision for the perpetuation of British subject status where a child is born to a British subject status and would otherwise be born and remain stateless. It is difficult but perhaps not impossible to see how a child born to an Irish British subject would be born stateless as it would require the child not to have acquired Irish citizenship. Thus few if any children of Irish British subjects would seem to benefit from this provision. Further, British subject status so acquired would be lost on the subsequent acquisition of any other citizenship or nationality. Clearly there is no intention to perpetuate British subject status beyond the pre-1949 generation other than to avoid statelessness.

The 1981 Act by section 32 also makes the provision for the registration on application and at discretion of any minor as a British subject. However, as the policy in the Nationality Instructions as to when discretion will be exercised makes clear, even in cases where a minor is stateless, generally speaking, more will required before discretion to register is exercised. Although possible under the 1981 Act, it is hard to see how the minor child (not stateless) of an Irish British subject would ever fall to have discretion to register him or her as a British subject exercised under the current policy.

Conclusion

Irish British subjects are a living reminder of the inter-linked history between the UK and Ireland. To have a nationality of one country dependent upon the possession of the nationality of another country is unusual. That such provision was made reflects the complex untangling of Ireland’s connection with the UK and its struggle for independence. Even at the moment when Ireland ceased to fall within the King’s dominions for the purposes of British nationality law, provision was made for Irish citizens to retain British nationality. The provision so made was not of a second-class form of British nationality but of a class of nationality whose holders will, generally, also possess the right of abode in the UK. Irish British subjects with the right of abode in the UK are indistinguishable from British citizens as regards there ability to enter the UK on production of a UK passport and to live and work in the UK thereafter, as regards their status as UK nationals who qualify as EU citizens, and as regards their ability to seek UK consular and diplomatic protection in third countries. That such persons hold a class of British nationality destined slowly to die out is a reflection of the changed political relationship between the UK and Ireland occasioned by the latter’s successful establishment as an independent state.